Research › Browse › Judgment

Kerala High Court · body

1954 DIGILAW 149 (KER)

Gouri Kunjamma v. Kalu Amma

1954-09-02

T.K.JOSEPH

body1954
Judgment :- 1. This second appeal was originally filed as a Civil Miscellaneous appeal but was later converted into a second appeal on the application of the appellant. The second appeal arises from a suit for redemption of a mortgage Ext. D dated 17.1.1096 executed by deceased Easwara Pillai Krishna Pillai husband of the 1st plaintiff and father of the 2nd plaintiff in favour of his mother Thonnamma. Thonnamma had another son Raman Pillai who was dead on the date of the suit. Defendants 1 to 7 are the children of Raman Pillai. Krishna Pillai died in the year 1096 and Thonnamma died some time later. After the death of Thonnamma, Raman Pillai gifted the property to his wife and children under Ext. V dated 28.7.1101. The plaintiff's case was that the plaint property was the self-acquisition of Krishna Pillai and that on his death the equity of redemption devolved on them. They also claimed one-half of the mortgage right alleging that the same had become vested in them on Thonnamma's death. The suit was accordingly brought for redemption of the mortgage on payment of one-half of the mortgage amount. Defendants 8 and 9 were mortgagees under Defendants 1 to 7. Defendants 2, 8 and 9 contested. They contended that the property did not belong to Krishna Pillai but to the tarwad consisting of Thonnamma, Krishna Pillai and Raman Pillai and that it devolved on Raman Pillai after the death of Thonnamma. The status of the plaintiffs as wife and son of Krishna Pillai was also denied. It was also contended that the suit was barred by limitation. The trial court found that the plaintiffs were the heirs of Krishna Pillai, that the equity of redemption devolved on them on Krishna Pilla's death as the property was his self-acquisition and that they were entitled to redeem the mortgage on payment of the mortgage amount of 4900 Fs. and the value of improvements which was assessed at Rs. 909 Chs. 23 Cash 12. On appeal by Defendants 8 and 9, the findings that the two plaintiffs were the wife and son of Krishna Pillai and that the property was the private acquisition of Krishna Pillai were upheld. It was also found that since Krishna Pillai died before the passing of the present Nair Act, one-half of the equity of redemption devolved on his tarwad. It was also found that since Krishna Pillai died before the passing of the present Nair Act, one-half of the equity of redemption devolved on his tarwad. Defendants 1 to 7 were thus found to be entitled to one-half of the equity of redemption. The decree of the trial court was accordingly modified and the plaintiffs were given a decree for recovery of one-half of the property on payment of one half of the mortgage amount and the value of improvements on the one-half property that would be allotted to them in division. Defendants 8 and 9 have preferred this second appeal from the decree of the lower appellate court. 2. The findings that the plaintiffs were owners of one-half of the equity of redemption and that the property was the self-acquisition of Krishna Pillai were not disputed in second appeal. The points urged were that the effect of the decree of the lower appellate court was to convert a suit for redemption into one for partition and that by passing a decree for recovery of one-half of the property, the appellants were deprived of the opportunity of raising such contentions as would have been open to them if the plaint had been amended. It was also contended that in a properly framed suit for partition of Krishna Pillai's property other items also would have to be brought in and that the Marumakkathayam heirs of Krishna Pillai would be entitled to retain possession until such division was effected. 3. These objections are not in my opinion substantial. The lower appellate court cannot be taken to have converted a suit for redemption into one for partition. The plaintiffs sued for redemption and recovery of the entire property covered by the mortgage. In view of the finding that they were entitled to one-half of the equity of redemption, it was open for the court to give a decree for recovery of the whole area. However, in limiting the decree for recovery of possession to one-half of the property the court below took a course which was favourable to the appellants. It is open for a court to grant a relief asked for in the plaint either wholly or in part. It was the latter course that was adopted by the lower appellate court. The reliefs granted can be moulded according to circumstances of each case. It is open for a court to grant a relief asked for in the plaint either wholly or in part. It was the latter course that was adopted by the lower appellate court. The reliefs granted can be moulded according to circumstances of each case. In Firm Srinivas Ram v. Mahabir Prasad (A.I.R. 1951 Supreme Court 177) the plaintiff sued for specific performance of a contract to sell a house to the plaintiff. It was alleged that the defendant had received the major portion of the consideration and had handed over possession to the plaintiff. The defendants denied the contract and pleaded that the plaintiff was put in possession because he gave a loan of Rs. 30,000/-. The contract for sale was found against but the Supreme Court gave a decree to the plaintiff for recovery of Rs. 30,000/- even though no alternative relief had been prayed for in the plaint. Their Lordships followed the decision in Mohan Manucha v. Manzoor Ahamad (A.I.R. 1943 P.C. 29). In Kedar Lal v. Hari Lal (A.I.R. 1952 S.C. 47), Bose, J. held: "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs." 4. I do not see how the course adopted by the lower appellate court causes any prejudice to the appellants. This is only a suit for redemption of a mortgage and if a suit for partition of Krishna Pillai's properties is instituted hereafter it will be open for the parties to ask for appropriate reliefs in respect of the allotment of such properties and this decree will not be a bar to such a course. The contention that the Marumakkathayam heirs of Krishna Pillai were entitled to retain possession until such partition was effected cannot be upheld. The defendants trace their right to possession under the mortgage and that right belonged to Thonnamma and not to Krishna Pillai. The contention that the Marumakkathayam heirs of Krishna Pillai were entitled to retain possession until such partition was effected cannot be upheld. The defendants trace their right to possession under the mortgage and that right belonged to Thonnamma and not to Krishna Pillai. No question of right to possession in respect of Krishna Pillai's properties between his Makkathayam and Marumakkathayam heirs arises in this case. The decree passed by the lower appellate court is right and does not call for interference. The second appeal is therefore dismissed. The parties are directed to bear their costs in this court. Dismissed.